TERRANCE MCCUE, Applicant
PHILIPS PLASTICS CORP, Employer
SENTRY INSURANCE CO, Insurer
The applicant and respondents (Philips Plastics Corporation and Sentry Insurance Company) each submitted petitions for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on December 5, 2008. Respondents have conceded a compensable work injury occurring on or about January 5, 2007, but dispute remains concerning the nature and extent of disability and liability for certain medical expense.
The commission has carefully reviewed the entire record in this matter and hereby affirms the administrative law judge's Findings and Interlocutory Order, except as herewith modified.
The commission makes the following:
Delete the second full paragraph on page 7 of the administrative law judge's decision and substitute the following paragraphs therefor:
"In his Practitioner's Report dated December 5, 2007, Dr. Kirkhorn checked the causation box indicating that the work incident had precipitated, aggravated and accelerated the applicant's preexisting condition beyond normal progression. He further indicated that the applicant reached full healing subject only to permanent limitations as of February 21, 2007, but without further explanation, assessed zero percent permanent disability. Dr. Kirkhorn diagnosed moderate to severe mixed obstructive and resistive pulmonary disease, and referred the reader to his clinic note of February 7, 2007. In that clinic note, Dr. Kirkhorn included a diagnosis of respiratory intolerance to work-related fumes, together with diagnoses of COPD and possible emphysema or other interstitial process, based upon an abnormal CT scan. He recommended full pulmonary tests. In his clinic note dated March 16, 2007, Dr. Kirkhorn diagnosed moderate to severe mixed obstructive and resistive pulmonary disease and opined:
'I also explained that I could not state that his present respiratory diagnoses were caused by his work. From the 2003 readings, the TLVs and PELs have been acceptable. It is probable that he does have an underlying restrictive and obstructive pulmonary disease and I could not state it is caused by work. It is probable that respiratory irritants do exacerbate his symptoms but I cannot state that this is a permanent aggravation. His condition is a permanent one and it is probable that he will continue to be susceptible to respiratory irritants. This is explained to him. At this time, I would not state that there is a permanent partial disability rating as I cannot state that there is a work-relatedness and this is best handled under his long-term disability.'
These medical records render Dr. Kirkhorn's opinion ambiguous at best with regard to the issue of work causation. The applicant has a substantial medical history of preexisting symptoms related to COPD, reactive airway disease, and asthma. In accordance with the credible medical opinions of Dr. Williams and Dr. Brown, these conditions are found to be unrelated to the applicant's work exposure with the employer. Consistent with the opinions of Dr. Williams, Dr. Brown and Dr. Kirkhorn, the applicant is found to have reached his healing plateau from the work injury as of March 16, 2007. Dr. Williams and Dr. Brown credibly diagnosed a temporary aggravation of the applicant's preexisting respiratory conditions in the work incident of January 5, 2007, with no permanent disability."
Delete the second full paragraph on page 9 of the administrative law judge's decision and substitute the following paragraph therefor:
"Respondents have asserted that some of the medical expenses the applicant claimed in his WKC-3 represent costs of treatment for conditions unrelated to the work injury, including treatment for thyroid testing and expenses incurred subsequent to the healing plateau date of March 16, 2007. The specific charges objected to are not identified, but no objection was submitted with respect to reimbursement of the applicant's medical mileage expense. Accordingly, this order shall direct reimbursement of that medical mileage expense, and be left interlocutory with respect to the issue of all other medical expense. Respondents shall immediately pay any outstanding medical expense to which they have no objection. Respondents shall also identify to the applicant the specific charges they dispute, and on what grounds they base their dispute. If the parties cannot resolve this issue between themselves, there shall be opportunity for additional hearing with respect to this specific issue."
Delete the administrative law judge's INTERLOCUTORY ORDER and substitute therefor the commission's INTERLOCUTORY ORDER set forth below.
NOW, THEREFORE, this
The Findings and Interlocutory Order of the administrative law judge are modified to conform with the foregoing, and as modified, are affirmed. Within 30 days from this date, respondents shall pay to the applicant as reimbursement for medical mileage expense the sum of Six hundred six dollars and Twenty-five cents ($606.25).
Jurisdiction is reserved for such further Findings and Orders as may be warranted, consistent with this order.
Dated and mailed July 27, 2009
mccuete : 185 : 5 ND § 5.32
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
The applicant asserted that the administrative law judge's finding that the physicians all agreed he should avoid exposure to fumes, gases and solvents, but that he does not have a permanent sensitization to the chemical irritants present at the employer's facility, is an internally inconsistent finding. However, the physicians have restricted the applicant from the aforementioned exposures. The credible medical evidence demonstrates this restriction is attributable to the applicant's COPD, restrictive airway disease, and asthma, none of which is found to be a work-related condition. A medical restriction attributable to nonindustrial conditions is not synonymous with a permanent sensitization acquired from work exposure, as is present in Wagner-Butler-type cases.(1) In Wagner-Butler, compensation was awarded to the worker because his skin had become permanently sensitized to chemicals present in the work environment, such that he could not return to the work exposure without a recurring dermatitis. However, as long as he was not exposed to the work environment, his dermatitis completely resolved. No physician in the applicant's case has opined that there was a work-related permanent sensitization to any substance found in the employer's work environment. Rather, the credible evidence demonstrates that the applicant was given medical restrictions attributable to his permanent, nonindustrial respiratory conditions. Symptoms of these chronic, nonindustrial conditions continue even though he is not at work for the employer. Those symptoms were temporarily aggravated when he was at work at the employer's facility, but that temporary aggravation did not constitute a permanent sensitization.
The commission's modification with regard to medical expenses addresses the issue raised in respondents' petition.
cc:
Attorney Timothy B Melms
Attorney Beverly Wickstrom
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